-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, D1IwNi+re2J1AW3M8FmaYCAlhJLXxAlWgfY1xMiWDFLJNIzPPPidYf4tGdv5KM2v ePqPM5BHETATnSKhkqO/pA== 0001179022-10-000006.txt : 20100108 0001179022-10-000006.hdr.sgml : 20100108 20100108165211 ACCESSION NUMBER: 0001179022-10-000006 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20100108 DATE AS OF CHANGE: 20100108 GROUP MEMBERS: MILLENNIUM TECHNOLOGY VALUE PARTNERS MANAGEMENT, L.P. GROUP MEMBERS: MILLENNIUM TECHNOLOGY VALUE PARTNERS, L.P. GROUP MEMBERS: MILLENNIUM TVP (GP), LLC GROUP MEMBERS: SAMUEL L. SCHWERIN FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Millennium Technology Value Partners RCM L P CENTRAL INDEX KEY: 0001314078 IRS NUMBER: 000000000 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 350 PARK AVE 10TH FL CITY: NEW YORK STATE: NY ZIP: 10022 MAIL ADDRESS: STREET 1: 350 PARK AVE 10TH FL CITY: NEW YORK STATE: NY ZIP: 10022 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: IPASS INC CENTRAL INDEX KEY: 0001053374 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROCESSING & DATA PREPARATION [7374] IRS NUMBER: 931214598 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-79585 FILM NUMBER: 10518121 BUSINESS ADDRESS: STREET 1: 3800 BRIDGE PARKWAY CITY: REDWOOD SHORES STATE: CA ZIP: 94065 BUSINESS PHONE: 6502324115 MAIL ADDRESS: STREET 1: 3800 BRIDGE PARKWAY CITY: REDWOOD SHORES STATE: CA ZIP: 94065 SC 13D 1 millenniumschedule13d.htm SCHEDULE 13D Schedule 13D

 

 

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________

SCHEDULE 13D

Under the Securities Exchange Act of 1934 (Amendment No. _____)

iPass, Inc.
(Name of Issuer)

Common Stock, $0.001 Par Value
(Title of Class of Securities)

46261V108
(CUSIP Number)

Samuel L. Schwerin
Millennium Technology Value Partners
747 Third Avenue, 38th Floor
New York, NY 10017
(646) 521-7800

with copies to:

McKenna Long & Aldridge LLP
303 Peachtree Street, Suite 5300
Atlanta, Georgia 30308
Attn: Michael Cochran, Esq.
(404) 527-8375
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)

December 31, 2009
(Date of Event Which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f), or 13d-1(g), check the following box.   :

(Continued on following pages)

(Page 1 of 13)

CUSIP NO. 46261V108

1.

NAME OF REPORTING PERSONS
Millennium Technology Value Partners, L.P.

2.

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a) :
(b)x

3.

SEC USE ONLY

4.

SOURCE OF FUNDS
WC

5.

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d)
OR 2(e):  :

6.

CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware

 

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:

7.

SOLE VOTING POWER
3,078,278 shares of Common Stock

8.

SHARED VOTING POWER
-----------

9.

SOLE DISPOSITIVE POWER
3,078,278 shares of Common Stock

10.

SHARED DISPOSITIVE POWER
-----------

11.

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,078,278 shares of Common Stock

12.

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES                                                                                                   [ ]

13.

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
4.9% of the outstanding Common Stock

14.

TYPE OF REPORTING PERSON
PN

 

Page 2 of 13

CUSIP NO. 46261V108

1.

NAME OF REPORTING PERSONS
Millennium Technology Value Partners (RCM), L.P.

2.

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a) :
(b) x

3.

SEC USE ONLY

4.

SOURCE OF FUNDS
WC

5.

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):  :

6.

CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware

 

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:

7.

SOLE VOTING POWER
3,141,577 shares of Common Stock

8.

SHARED VOTING POWER
-----------

9.

SOLE DISPOSITIVE POWER
3,141,577 shares of Common Stock

10.

SHARED DISPOSITIVE POWER
-----------

11.

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,141,577 shares of Common Stock

12.

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES                                                                                                   [ ]

13.

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
5.0% of the outstanding Common Stock

14.

TYPE OF REPORTING PERSON
PN

 

Page 3 of 13

CUSIP NO. 46261V108

1.

NAME OF REPORTING PERSONS
Millennium Technology Value Partners Management, L.P.

2.

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a) :
(b) x

3.

SEC USE ONLY

4.

SOURCE OF FUNDS
N/A

5.

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):  :

6.

CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware

 

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:

7.

SOLE VOTING POWER
6,219,855 shares of Common Stock

8.

SHARED VOTING POWER
-----------

9.

SOLE DISPOSITIVE POWER
6,219,855 shares of Common Stock

10.

SHARED DISPOSITIVE POWER
-----------

11.

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,219,855 shares of Common Stock

12.

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES                                                                                                   [ ]

13.

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
9.9% of the outstanding Common Stock

14.

TYPE OF REPORTING PERSON
PN

 

Page 4 of 13

CUSIP NO. 46261V108

1.

NAME OF REPORTING PERSONS
Millennium TVP (GP), LLC

2.

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a) :
(b) x

3.

SEC USE ONLY

4.

SOURCE OF FUNDS
N/A

5.

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):  :

6.

CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware

 

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:

7.

SOLE VOTING POWER
6,219,855 shares of Common Stock

8.

SHARED VOTING POWER
-----------

9.

SOLE DISPOSITIVE POWER
6,219,855 shares of Common Stock

10.

SHARED DISPOSITIVE POWER
-----------

11.

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,219,855 shares of Common Stock

12.

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES                                                                                                   [ ]

13.

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
9.9% of the outstanding Common Stock

14.

TYPE OF REPORTING PERSON
OO

 

Page 5 of 13

CUSIP NO. 46261V108

1.

NAME OF REPORTING PERSONS
Samuel L. Schwerin

2.

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a) :
(b) x

3.

SEC USE ONLY

4.

SOURCE OF FUNDS
N/A

5.

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):  :

6.

CITIZENSHIP OR PLACE OF ORGANIZATION
United States

 

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:

7.

SOLE VOTING POWER
6,219,855 shares of Common Stock

8.

SHARED VOTING POWER
-----------

9.

SOLE DISPOSITIVE POWER
6,219,855 shares of Common Stock

10.

SHARED DISPOSITIVE POWER
-----------

11.

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,219,855 shares of Common Stock

12.

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES                                                                                                   [ ]

13.

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
9.9% of the outstanding Common Stock

14.

TYPE OF REPORTING PERSON
IN

 

Page 6 of 13

Page 7 of 13

Item 1.     Security and Issuer

The securities to which this statement relates are shares of Common Stock, $.001 par value per share ("Common Shares"), of iPass Inc., a Delaware corporation (the "Issuer"). The principal executive offices of the Issuer are located at 3800 Bridge Parkway, Redwood Shores, California 94065.

Item 2.     Identity and Background

The names of the reporting persons are Millennium Technology Value Partners, L.P. ("Millennium LP"), Millennium Technology Value Partners (RCM), L.P.  ("Millennium RCM LP"), Millennium Technology Value Partners Management, L.P. ("Millennium Management"), Millennium TVP (GP), LLC ("Millennium TVP"), and Samuel L. Schwerin (collectively, the "Reporting Persons").  Millennium RCM LP and Millennium LP are limited partnerships organized and existing under the laws of the State of Delaware, which invest in public and private companies.  Millennium RCM LP and Millennium LP are each controlled by their general partner, Millennium Management, a Delaware limited partnership, who in turn is managed by its general partner, Millennium TVP, a Delaware limited liability company.  Samuel L. Schwerin is the managing member of Millennium TVP, and the principal occupation of Mr. Schwerin is the management of Millennium TVP. Mr Schwerin is a United States citizen. The business address for the Reporting Persons is Millennium Technology Value Partners, 747 Third Avenue, 38th Floor, New York, NY 10017.  

During the past five years, none of the Reporting Persons has been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors) or been a party to any civil proceeding of any judicial or administrative body of competent jurisdiction as a result of which he or it was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

Item 3.     Source and Amount of Funds or Other Consideration

The total amount of funds used by Millennium LP and Millennium RCM LP to purchase the 6,219,855 Common Shares it directly owns was $5,941,309.86 (excluding brokerage commissions). All of such funds were derived from capital contributions to Millennium LP and Millennium RCM LP.

Item 4.     Purpose of the Transaction

Pursuant to a Stock Transfer Agreement, dated December 29, 2009 (the "Stock Transfer Agreement"), between Shamrock Activist Value Fund, L.P. ("SAVF") and Millennium LP and Millennium RCM LP, SAVF agreed to sell 5,566,126 Common Shares to Millennium LP and Millennium RCM LP in a private transaction (the "SAVF Sale"). The SAVF Sale was completed on December 31, 2009. A copy of the Stock Transfer Agreement is attached hereto as Exhibit 1 and incorporated by reference. Millennium LP and Millennium RCM LP previously had acquired 653,729 Common Shares in the open market over the prior thirteen months as part of their normal business of operating as private investment funds

The Reporting Persons acquired the Common Shares based on the Reporting Persons' belief that the Common Shares at current market prices are undervalued and represent an attractive investment opportunity.

Page 8 of 13

The Reporting Persons have engaged in constructive dialogue with the members of the Company's board and management and plan to engage in future constructive dialogues including regarding potential changes designed to enhance long-term shareholder value.  The Reporting Persons may also communicate with other shareholders of the Company, knowledgeable industry or market observers, and other representatives of the Company regarding the Company, including but not limited to its operations, strategy, management, capital structure, and the strategic alternatives that may be available to the Company.

The Reporting Persons and their representatives and advisers intend to closely monitor the Company's performance. The Reporting Persons may in the future exercise any and all of their respective rights as shareholders of the Company in a manner consistent with their equity interests, including seeking representation on the Company's board of directors.

The Reporting Persons are engaged in the investment business, and in the ordinary course of business review and analyze various factors affecting the companies whose securities they own, including the Company. Notwithstanding the foregoing, the Reporting Persons may determine from time to time in the future, based on market and general economic conditions, the business affairs and financial condition of the Company, the availability of securities at favorable prices and alternative investment opportunities available to the Reporting Persons, and other factors that the Reporting Persons may deem relevant, to acquire additional securities of the Company in the open market, in privately negotiated transactions or otherwise, or to sell some or all of the securities they now hold or hereafter acquire as set forth above or otherwise.

Except as stated in this response to Item 4, the Reporting Persons have no current plans or proposals with respect to the Company or its securities of the types enumerated in paragraphs (a) through (j) of Item 4 to the form of Schedule 13D promulgated under the Act.

Item 5.     Interest in Securities of the Issuer

(a) and (b) The aggregate percentage of Common Shares reported owned by each Reporting Person named herein is based upon 62,237,594 Common Shares outstanding, as of October 30, 2009, which is the total number of Common Shares outstanding as reported in the Issuer's Quarterly Report on Form 10-Q, filed with the Securities and Exchange Commission on November 6, 2009 (the "Outstanding Common Shares").

1. Millennium Technology Value Partners, L.P. - Beneficially owns 3,078,278 Common Shares, which Common Shares represent 4.9% of the Outstanding Common Shares, and has sole power to vote or to direct the vote and sole power to dispose or to direct the disposition of all such 3,078,278 Common Shares.

2. Millennium Technology Value Partners (RCM), L.P. - Beneficially owns 3,141,577 Common Shares, which Common Shares represent 5.0% of the Outstanding Common Shares, and has sole power to vote or to direct the vote and sole power to dispose or to direct the disposition of all such 3,141,577 Common Shares.

3. Millennium Technology Value Partners Management, L.P. - Through its role as general partner of each of Millennium LP and Millennium RCM LP, Millennium Management beneficially owns 6,219,855 Common Shares, which Common Shares represent 9.9% of the Outstanding Common Shares, and has sole power to vote or to direct the vote and sole power to dispose or to direct the disposition of all such 6,219,855 Common Shares.

Page 9 of 13

4. Millennium TVP (GP), LLC - Through its role as general partner of Millennium Management, Millennium TVP beneficially owns 6,219,855 Common Shares, which Common Shares represent 9.9% of the Outstanding Common Shares, and has sole power to vote or to direct the vote and sole power to dispose or to direct the disposition of all such 6,219,855 Common Shares.

5. Samuel L. Schwerin - Through his role as managing member of Millennium TVP, Mr. Schwerin beneficially owns 6,219,855 Common Shares, which Common Shares represent 9.9% of the Outstanding Common Shares, and has the power to vote or to direct the vote and the power to dispose or to direct the disposition of all such 6,219,855 Common Shares.

The filing of this Schedule 13D shall not be deemed an admission that the Reporting Persons are, for purposes of Section 13(d) of the Exchange Act, the beneficial owners of any Common Shares he or it does not directly own. Each of the Reporting Persons specifically disclaims beneficial ownership of the Common Shares reported herein that he or it does not directly own.

(c) During the preceding 60 days, the Reporting Persons effected transactions with respect to the Common Shares on such dates, in such amounts, and at such per share prices as indicated below:

Date

Millennium Technology Value Partners, L.P. Transactions

Millennium Technology Value Partners (RCM), L.P. Transactions

12/31/2009

N/A

2,800,918 shares at $0.94 per share.

12/30/2009

2,765,208 shares at $0.94 per share.

N/A

12/15/2009

100,499 shares at $0.98 per share.

101,796 shares at $0.98 per share.

12/06/2009

734 shares at $0.97 per share.

N/A

12/04/2009

100 shares at $1.10 per share.

N/A

11/06/2009

N/A

25,000 shares at $1.20 per share.


Each of the transactions described in this response to Item 5(c) were effected in New York, NY. The transactions that occurred on December 30, 2009 and December 31, 2009, respectively, were effected via the SAVF Sale described in the response to Item 4 above. The transactions that occurred on November 6, 2009, December 4, 2009, December 6, 2009, and December 15, 2009, respectively, were effected on the open market as part of Millennium LP's and Millennium RCM LP's normal business of operating as a private investment fund.

(d) No person other than the Reporting Persons is known to have the right to receive, or the power to direct the receipt of dividends from, or proceeds from the sale of, the Common Shares owned by the Reporting Persons.

(e) Not applicable.

Page 10 of 13

Item 6.     Contract, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

None of the Reporting Persons are a party to any contracts, arrangements, understandings or relationships (legal or otherwise) with any other person with respect to any securities of the Issuer, including finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies.

Page 11 of 13

Item 7.     Material to be Filed as Exhibits

1.

Stock Transfer Agreement, dated December 29, 2009, between Shamrock Activist Value Fund, L.P. and Millennium Technology Value Partners, L.P. and Millennium Technology Value Partners (RCM), L.P.

2.

Joint Filing Agreement and Power of Attorney pursuant to Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934, as amended, among Millennium Technology Value Partners, L.P., Millennium Technology Value Partners (RCM), L.P., Millennium Technology Value Partners Management, L.P., Millennium TVP (GP), LLC, and Samuel L. Schwerin.

 

Page 12 of 13

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Amendment is true, complete and correct.

 

 

Date: January 8, 2010

 


MILLENNIUM TECHNOLOGY VALUE PARTNERS, L.P.

 


By:   Millennium Technology Value Partners Management, L.P.,
         its General Partner

By:   Millennium TVP (GP), LLC,
         its General Partner

 


By:   /s/ Samuel L. Schwerin
        Samuel L. Schwerin, Managing Member

 

 

 

MILLENNIUM TECHNOLOGY VALUE PARTNERS (RCM), L.P.

 


By:   Millennium Technology Value Partners Management, L.P.,
         its General Partner

By:   Millennium TVP (GP), LLC,
          its General Partner

By: /s/ Samuel L. Schwerin
      Samuel L. Schwerin, Managing Member

 

 

 

MILLENNIUM TECHNOLOGY VALUE PARTNERS
MANAGEMENT, L.P.

 


By:   Millennium TVP (GP), LLC,
         its General Partner

By: /s/ Samuel L. Schwerin
      Samuel L. Schwerin, Managing Member
 

Page 13 of 13

 

 

MILLENNIUM TVP (GP), LLC

 

 


By: /s/ Samuel L. Schwerin
      Samuel L. Schwerin, Managing Member

 

 

/s/ Samuel L. Schwerin
Samuel L. Schwerin
EX-99 2 exhibit1.htm STOCK TRANSFER AGREEMENT Stock Transfer Agreement, dated December 29, 2009

Exhibit 1

STOCK TRANSFER AGREEMENT

THIS STOCK TRANSFER AGREEMENT (the “Agreement”) is made and entered into as of December 29, 2009, by and among Shamrock Activist Value Fund, L.P., a Delaware limited partnership (“Seller”), Millennium Technology Value Partners, L.P., a Delaware limited partnership (“MTVP”) and Millennium Technology Value Partners (RCM), L.P., a Delaware limited partnership (“MTRCM” and collectively with MTVP, the “Purchaser”).

WHEREAS, Seller owns 5,566,126 shares of common stock (the “Shares”) of iPass Inc. (the “Company”); and

WHEREAS, Seller desires to sell, and Purchaser desires to purchase, the Shares upon the terms and conditions set forth herein.

NOW THEREFORE, in consideration of the mutual agreements contained in this Agreement, and intending to be legally bound by the terms and conditions of this Agreement, the parties agree as follows:

SECTION 1. SALE AND ACQUISITION OF THE SHARES.

(a) Sale and Purchase; Consideration. Subject to the terms and conditions of this Agreement, at the Closes (as defined below), Purchaser shall purchase from Seller, and Seller shall sell, transfer and convey to Purchaser, the Shares for aggregate sale proceeds of $5,232,158.44 (the “Consideration”). Allocation of the Shares between, and the Consideration to be paid at each Close by, MTVP and MTRCM, as applicable, shall be made as set forth on Schedule I. Payment of the Consideration shall be made on the date of each Close by wire transfer of immediately available funds in U.S. Dollars to an account designated by Seller prior to the applicable Close. Purchaser acknowledges and agrees that Seller is only willing to sell, transfer and convey all of the Shares and not a portion thereof and, accordingly, Purchaser agrees that, after the first Close, it will be required to purchase the remainder of the Shares on the date scheduled for such second Close as set forth on Schedule I and otherwise in accordance with the terms and conditions of this Agreement.

(b) Close. The two closings of the sale and purchase of the Shares shall take place with respect to each of MTVP and MTRCM on such date as set forth beside such Purchaser’s name on Schedule I (each, a “Close”); provided, however, that Seller shall have no further obligation to sell the Shares to Purchaser if the Closes have not occurred on or prior to December 31, 2009. Each Close shall occur at the offices of Purchaser or at such other place and time as the parties may agree. At each Close, Seller shall (i) deliver to Purchaser the certificate(s) representing 4,000 Shares to be transferred, duly endorsed for transfer or accompanied by duly executed stock powers, (ii) deliver to the Purchaser and the Company’s transfer agent the correspondence of the Company instructing the transfer agent to transfer ownership of the

uncertificated Shares from the Seller to the Purchaser and (iii) cause the book entries through a direct registration system for the remainder of the Shares which are uncertificated to be updated to reflect that Purchaser is the new record owner of such Shares, all such transfers being evidenced by the Stock Power in the form attached hereto as Exhibit A, as applicable, and effective as of the applicable date of such Close in accordance with Schedule I.

SECTION 2. REPRESENTATIONS AND WARRANTIES OF SELLER.

In connection with the transactions contemplated by this Agreement, Seller hereby represents and warrants to Purchaser as of each Close as follows:

(a) Authorization. Seller has the full right, power and authority to enter into this Agreement and any other agreements contemplated hereby and to perform the obligations hereunder and thereunder. Seller has duly executed and delivered this Agreement. This Agreement constitutes a legal, valid and binding obligation of Seller and is enforceable against Seller in accordance with its terms.

(b) No Violation; No Approvals. The execution and delivery of this Agreement and the performance of its obligations hereunder by Seller, to the best of Seller’s knowledge, will not, (i) violate or conflict with Seller’s formation or governance documents, or (ii) violate, conflict with, result in a breach of, or constitute (with or without notice or lapse of time or both) a default under any indenture, agreement, lease or other instrument to which Seller is a party or by which Seller or any of Seller’s property is bound. Assuming the truth, accuracy and completeness of Purchaser’s representations and warranties in Section 3, no approval, authorization, order or consent of any court, regulatory body, administrative agency or other governmental body is required for the execution and delivery of this Agreement or performance of the obligations hereunder.

(c) No Litigation. No suit, action or legal, administrative, arbitrative or other proceeding and, to the Seller’s actual knowledge, no investigation by any governmental agency or third party is pending or, to Seller’s actual knowledge, has been threatened against Seller which questions the validity or legality of this Agreement or any action taken or to be taken by Seller in connection with this Agreement or which could materially and adversely affect the ability of Seller to consummate the transactions contemplated by this Agreement.

(d) Title. Seller has good and valid title to the Shares. Upon delivery of and payment for the Shares pursuant to this Agreement, Purchaser will receive good and valid title thereto free and clear of all liens, charges, pledges, taxes, security interests, options, warrants, purchase rights, contracts, commitments, claims, derivative rights, voting trusts, community property interests, transfer restrictions or other encumbrances.

(e) Exempt Sale. Assuming the truth, accuracy and completeness of Purchaser’s representations and warranties in Section 3, the transfer of the Shares as contemplated hereunder is exempt from registration under applicable federal securities laws.

(f) Stop Transfer Order. To Seller’s actual knowledge, the Shares are not subject to a stop transfer order or any other restriction limiting or restricting Seller’s ability to sell and transfer the Shares pursuant to this Agreement.

SECTION 3. REPRESENTATIONS AND WARRANTIES OF PURCHASER.

In connection with the transactions contemplated by this Agreement, Purchaser hereby, jointly and severally, represents and warrants to Seller as of each Close as follows:

(a) Authorization. Purchaser has full right, power and authority to enter into this Agreement and all other agreements contemplated hereby and to perform the obligations hereunder and thereunder. Purchaser has duly executed and delivered this Agreement. This Agreement constitutes a legal, valid and binding obligation of Purchaser and is enforceable against Purchaser in accordance with its terms.

(b) No Violation, No Approvals. The execution and delivery of this Agreement and the performance of its obligations hereunder by Purchaser, to the best of Purchaser’s knowledge, will not (i) violate or conflict with Purchaser’s formation or governance documents, or (ii) violate, conflict with, result in a breach of, or constitute (with or without notice or lapse of time or both) a default under any indenture, agreement, lease or other instrument to which Purchaser is a party or by which Purchaser or any of Purchaser’s property is bound. Assuming the truth, accuracy and completeness of Seller’s warranties in Section 2, no approval, authorization, order or consent of any court, regulatory body, administrative agency or other governmental body is required for Purchaser’s execution and delivery of this Agreement or performance of its obligations hereunder.

(c) No Litigation. No suit, action or legal, administrative, arbitrative or other proceeding and, to Purchaser’s actual knowledge, no investigation by any governmental agency or third party is pending or, to Purchaser’s actual knowledge, has been threatened against Purchaser which questions the validity or legality of this Agreement or any action taken or to be taken by Purchaser in connection with this Agreement or which could materially and adversely affect the ability of Purchaser to consummate the transactions contemplated by this Agreement.

(d) Information. Purchaser initiated contact with Seller regarding Purchaser’s interest in purchasing the Shares, and Seller did not solicit Purchaser in any manner regarding Purchaser’s purchase of the Shares. Seller has disclosed to Purchaser that Stanley P. Gold (“Mr. Gold”), the Managing Member and President of Shamrock Partners Activist Value Fund, L.L.C., the managing member of Shamrock Activist Value Fund GP, L.L.C, the general partner of Seller, currently serves as a director of the Company and, as a result of Mr. Gold’s position as a director of the Company, Seller may be in possession of material non-public information about the Company, including without limitation, the Company’s business, assets, liabilities, results of operations and prospects (collectively, the “Information”), some or all of which may not be known by Purchaser and which, if known by Purchaser, might cause Purchaser to change its decision to purchase the Shares or the price for such purchase. Seller has not made any representation or warranty to Purchaser as to any Information, the extent it holds Information, any Information received, or the transactions contemplated hereby except as expressly set forth in this Agreement. Purchaser is a sophisticated investor, has knowledge and experience in

financial and business matters, and, notwithstanding its lack of knowledge of the Information, has made its own decision to purchase the Shares and the price at which to purchase the Shares based upon its own analysis of publicly available information or other information (including, as applicable, any Information) available to it, and Purchaser further acknowledges that Purchaser has conducted its own independent investigation, to the extent that Purchaser has determined necessary or desirable, regarding the Company. Purchaser acknowledges that it has not requested or received any Information or investment advice from Seller and confirms that it is not relying on any representation, warranty, communication or disclosure of any nature from Seller except as contained in this Agreement.

(e) Purchase Entirely for Own Account; No Brokers. Purchaser is purchasing the Shares for its own account and not as a nominee or agent for any third party, for investment purposes and not with a view to or for the sale in connection with the distribution thereof within the meaning of the Securities Act of 1933, as amended (the “Act”). Purchaser has not employed any broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokerage fees, commissions or finders’ fees in connection with the transactions contemplated hereby or in connection with Purchaser’s purchase of the Shares.

(f) Securities Matters. Purchaser is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the Act. Purchaser is a sophisticated investor and has the knowledge, capacity, sophistication and experience to evaluate the risks and merits of, make an informed decision with respect to, the transactions contemplated by this Agreement and to be able to protect Purchaser’s interests in connection with the purchase of the Shares. Purchaser is capable of bearing the economic risk of a complete loss of the investment in the Shares. Purchaser has been provided with access to the Company’s public filings, which include the same type of information as would be included in a Company registration statement for a primary offering of Company securities.

(g) No Other Holdings. Prior to giving effect to the transactions contemplated hereby, Purchaser is not the record owner of, and does not otherwise have any beneficial interest in, more than five million shares of common stock of the Company or any rights to acquire any such shares other than as contemplated in this Agreement.

SECTION 4. RELEASE, WAIVER AND COVENANT NOT TO SUE.

Seller shall have no liability to Purchaser and Purchaser hereby waives and releases and covenants not to sue Seller, Mr. Gold or any of Seller’s officers, directors, employees, agents, affiliates or assigns (each, a “Released Party”) with respect to any and all rights and claims which Purchaser or any of its affiliates may have or may hereafter acquire against any Released Party, whether under applicable securities laws or otherwise, to the extent relating to any failure by a Released Party to disclose the Information to Purchaser relating to this transaction.

SECTION 5. FURTHER ASSURANCES.

If requested by or on behalf of the Company or its transfer agent in connection with the transactions contemplated by this Agreement, Seller shall have its legal counsel prepare and

deliver a legal opinion to the effect that the sale and transfer of the Shares by Seller to Purchaser is subject to a valid exemption or is otherwise not required to be registered under the Act.

SECTION 6. SUCCESSORS AND ASSIGNS.

Except as otherwise expressly provided in this Agreement, all covenants and agreements contained in this Agreement by or on behalf of any of the parties hereto will bind and inure to the benefit of the respective successors and assigns of such parties whether so expressed or not; provided, however, that no party hereto may assign all or any of its rights and obligations under this Agreement to any other person or entity without the other party’s express prior written consent.

SECTION 7. BREACH OF AGREEMENT; SURVIVAL OF REMEDIES.

Seller recognizes that any breach by it of this Agreement could cause irreparable harm to the present or future business of Purchaser, the effect or amount of which may be difficult to estimate. Seller agrees that Purchaser shall have the right to apply to any court of competent jurisdiction for an order restraining any actual or threatened breach of this Agreement by Seller and for an order of specific performance to require Seller to honor the terms of this Agreement and to sell the Shares to Purchaser. If a breach by a party hereto of its obligations hereunder results in the termination or expiration of this Agreement, the other party shall be able to continue to pursue all available remedies under applicable law, after such termination or expiration.

SECTION 8. NOTICE.

Any notice provided, permitted or required to be given under this Agreement must be in writing and shall be deemed to have been duly given when received during normal business hours of the addressee (otherwise at the beginning of normal business hours of the next business day) (a) if personally delivered, (b) when transmitted if transmitted by confirmed facsimile with a copy sent by another means specified herein, (c) the business day after it is sent if sent for next day delivery to a domestic address by recognized overnight delivery service, and (d) on the date of delivery as shown on the return receipt if mailed by certified or registered mail, postage prepaid, return receipt requested. Such addresses may be changed, from time to time, by means of a notice given by a party hereto to the other parties in the manner provided in this Section 8.

SECTION 9. ENTIRE AGREEMENT.

This Agreement constitutes the entire contract between the parties hereto with regard to the subject matter hereof. It supersedes any other agreements, representations or understandings (whether oral or written and whether express or implied) which relate to the subject matter hereof. This Agreement may be executed in two or more counterparts, including by electronic facsimile transmission, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall attach only to such provision and shall not in any manner affect or render illegal, invalid or unenforceable any other severable provision of this Agreement, and this Agreement shall be carried out as if any

such illegal, invalid or unenforceable provision were not contained herein. Section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. This Agreement may not be amended without the written consent of each of the parties hereto.

SECTION 10. CHOICE OF LAW.

This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, as such laws are applied to contracts entered into and performed in such State.

SECTION 11. TIME OF THE ESSENCE.

With regard to all dates and time periods set forth or referred to in this Agreement, the parties hereto acknowledge and agree that time is of the essence.

SECTION 12. EXPENSES

Each party hereto shall bear the expenses incurred by such party in connection with the negotiation and execution of this Agreement and the consummation of the transactions contemplated hereby.

[Signature page follows.]

IN WITNESS WHEREOF, each of the undersigned has executed this Stock Transfer Agreement as of the day and year first above written.

 

SELLER:     PURCHASER:
Shamrock Activist Value Fund, L.P.     Millennium Technology Value Partners, L.P.
By:  

Shamrock Activist Value Fund GP, L.L.C.,

its general partner

     By:  

Millennium Technology Value

Partners Management, L.P.,

its General Partner

By:  

Shamrock Partners Activist Value Fund, L.L.C.,

its managing member

     By:  

Millennium TVP (GP), LLC

its General Partner

By:   /s/ Stanley P. Gold     By:   /s/ Samuel L. Schwerin
Name:   Stanley P. Gold     Name:   Samuel L. Schwerin
Title:   President and CEO     Title:   Managing Member
      Millennium Technology Value Partners (RCM), L.P.
      By:  

Millennium Technology Value

Partners Management, L.P.,

its General Partner

      By:  

Millennium TVP (GP), LLC

its General Partner

      By:   /s/ Samuel L. Schwerin
      Name:   Samuel L. Schwerin
      Title:   Managing Member
Seller’s Address:     Purchaser’s Address:

c/o Shamrock Partners Activist Value Fund, L.L.C.

4444 Lakeside Drive

Burbank, California 91505

(818) 845-4444

    

c/o Millennium Technology Ventures

747 Third Avenue, 38th Floor

New York, NY 10017

(646) 521-7800

with copies to:     with copies to:

David Robbins, Esq.

Bingham McCutchen LLP

355 South Grand Avenue, Suite 4400

Los Angeles, California 90071-3106

(213) 680-6560

    

Michael J. Cochran, Esq.

McKenna Long & Aldridge LLP

230 Park Avenue Suite 1700

New York, NY 10169

(404) 527-8375

 

SCHEDULE I

ALLOCATION

 

Name of Purchaser

    Number of Shares
Being Purchased		    Purchase Price    Closes

Millennium Technology Value Partners, L.P.

    2,765,208    $ 2,599,295.52    December 30, 2009

Millennium Technology Value Partners (RCM), L.P.

    2,800,918    $ 2,632,862.92    December 31, 2009
                

Total:

    5,566,126    $ 5,232,158.44    —  
 EX-99 3 exhibit2.htm JOINT FILING AGREEMENT EXHIBIT 2

EXHIBIT 2

JOINT FILING AGREEMENT and POWER OF ATTORNEY

Pursuant to Rule 13d-1(k), the undersigned hereby agree that the attached Schedule 13D (including any amendments thereto) is filed by behalf of each of them.

Each of the undersigned hereby makes, constitutes, and appoints Samuel L. Schwerin their true and lawful attorney-in-fact, with full power of substitution and resubstitution, for it in any and all capacities to execute and cause to be filed with the Securities and Exchange Commission any and all amendments to this Schedule 13D, together with exhibits to any such amendments and other documents in connection therewith, and hereby ratifies and confirms all that said attorney-in-fact or said attorney-in-fact's substitute or substitutes may do or cause to be done by virtue hereof.

 

Date: January 8, 2010

 

 

MILLENNIUM TECHNOLOGY VALUE PARTNERS, L.P.

 


By:   Millennium Technology Value Partners Management, L.P.,
          its General Partner

By:   Millennium TVP (GP), LLC, its General Partner

 

 

By:   /s/ Samuel L. Schwerin
      Samuel L. Schwerin, Managing Member

 

 

 

MILLENNIUM TECHNOLOGY VALUE PARTNERS (RCM), L.P.

 


By:   Millennium Technology Value Partners Management, L.P.,
         its General Partner

By:   Millennium TVP (GP), LLC, its General Partner

By:   /s/ Samuel L. Schwerin
       Samuel L. Schwerin, Managing Member

 

 

 

MILLENNIUM TECHNOLOGY VALUE PARTNERS MANAGEMENT, L.P.

 


By:   Millennium TVP (GP), LLC, its General Partner

By:   /s/ Samuel L. Schwerin
      Samuel L. Schwerin, Managing Member

 

 

 

MILLENNIUM TVP (GP), LLC

 

 

 


By:   /s/ Samuel L. Schwerin
       Samuel L. Schwerin, Managing Member

 

 

 

/s/ Samuel L. Schwerin
Samuel L. Schwerin

 

 

 

 

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